ELR Citation: ELR 20098
No(s). 07-1601 (U.S. May 4, 2009)

The U.S. Supreme Court held that mere knowledge of continuing spills and leaks is insufficient grounds for holding a company liable as an arranger under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Under the plain language of CERCLA §107(a)(3), an entity may qualify as an arranger when it takes intentional steps to dispose of a hazardous substance. Here, the company sold pesticides to an agricultural chemical facility in Arvin, California. To qualify as an arranger, therefore, the company must have entered into the pesticide sales with the intent that at least a portion of the product be disposed of during the transfer process. But the facts found by the lower court do not support such a conclusion. The evidence shows that the company was aware that minor, accidental spills occurred during the pesticide's transfer from the common carrier to the chemical facility's storage tanks after the product had come under the chemical facility's stewardship; however, it also reveals that the company took numerous steps to encourage its distributors to reduce the likelihood of spills. Thus, the company's mere knowledge of continuing spills and leaks is insufficient grounds for concluding that it "arranged for" the pesticide's disposal. As for railroad companies who owned property adjacent to the site, however, the lower court reasonably apportioned their share of remediation costs at 9%. The lower court's detailed findings show that the primary pollution at the site was on the portion of the facility most distant from the railroad parcel. In addition, the hazardous-chemical spills on the railroad parcel contributed to no more than 10% of the total site contamination, some of which did not require remediation. Stevens, J. delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Ginsburg, J., filed a dissenting opinion.